Cassidy v. Norton

BURNETT, J.

Petitioner seeks to have annulled two certain orders made by the superior court of San Joaquin County. The application is grounded, of course, upon the contention that the court thereby exceeded its jurisdiction. An alternative writ of

certiorari

was issued by this court and in the return of respondent we have a full record of the proceedings of the lower court.

The first of these orders was made upon the fourth day of May, 1914, and was an order of substitution in the case of Elpha Cassidy

v.

Commercial and Savings Bank and provided

[434]

and adjudged “that upon payment by the above named defendant, Commercial and Savings Bank,- a corporation, into the superior court of the state of California in and for the county of San Joaquin, to the clerk of said court of the sum of twelve hundred fifty dollars in gold coin of the United States of America, Wm. H. Riecks, sheriff of the county of San Joaquin, be and he hereby is substituted as defendant in this action for and in the place of said Commercial and Savings Bank and that said Commercial and Savings Bank, a corporation, be and it hereby is dismissed and discharged as defendant in this action and from all liability in or as to the matter in this action, or to said Wm. H. Riecks, said sheriff, or to him for or on account of levies of writs of attachment or execution.”

The second order was made on the fifteenth day of June following and provided that John T. Lewis, A. L. Farrington, and P. B. Hubbard be joined as parties defendant and that plaintiff file a supplemental complaint joining said parties as defendants and requiring the service of the same upon them.

Both of these orders are clearly authorized by the statute. Section 386 of the Code of Civil Procedure provides: “A defendant, against whom an action is pending upon a contract, or for specific personal property, may, at any time before answer, upon affidavit that a person not a party to the action makes against him, and without any collusion with him, a demand upon such contract, or for such property, upon notice to such person and the adverse party, apply to the court for an order to substitute such person in his place, and discharge him from liability to either party, on his depositing in court the amount claimed on the contract, or delivering the property, or its value, to such person as the court may direct; and the court may, in its discretion, make the order. ’ ’